The judgment emphasizes that the continuance of a marriage irretrievably broken down could itself amount to cruelty, as established in Satish Sitole vs. Smt. Ganga, (2008) 7 SCC 734.

JUDGMENT

Arindam Sinha, J. - In view of difference of opinion in the Division Bench there was assignment of the appeal to this Bench for third view. Mr. Paul, learned advocate appeared on behalf of appellant/wife while Mr. Bhattacharya, learned senior advocate appeared on behalf of respondent/husband. Upon hearing them it transpired, trial Court did not find in favour of respondent/husband as had proved existence of grounds under clauses (ia) and (ib) in sub-section(1) of section 13, Hindu Marriage Act, 1955. However, decree for divorce was granted on finding of irretrievable break down of marriage. Hence, appeal by the wife.

2. Judgment of Supreme Court in Satish Sitole vs. Smt. Ganga, (2008) 7 SCC 734 as well as AIR 2008 SC 3093 were considered by trial Court and both learned Judges in the Division Bench. Learned presiding Judge said, on consideration of judgments of Supreme Court in Vishnu Dutt Sharma versus Manju Sharma, (2009) 6 SCC 379 and Darshan Gupta versus Radhika Gupta, (2013) 9 SCC 1 , irretrievable breakdown is not a good ground to grant divorce in a contested action. So, the legal premise for granting divorce by trial Judge, was incorrect. Learned presiding Judge went on to say, on considering Satish Sitole (supra), continuance of a marriage on irretrievable breakdown would amount to cruelty. On facts, learned presiding Judge found there is evidence to suggest that since year 2001, respondent husband had been requesting appellant wife to be physically proximate with him, but she repeatedly denied him amounting to sufficient mental torture, entitling the husband to obtain divorce. Judgment of learned presiding Judge was that trial Judge had come to correct conclusion for granting divorce but attributed wrong legal reasons in support of it.

3. Learned second Judge agreed with interpretation of learned presiding Judge that Supreme Court in Satish Sitole (supra) had said, continuance of marriage irretrievably broken down could itself amount to cruelty. Said learned Judge found, apart from a bald statement, the husband failed to prove that the wife refused to cohabit with him. Said learned Judge went on to find, the wife was all along ready and willing to stay with the husband and continue with the marital tie. She is eager to be united with her husband.

4. Mr. Paul, drew attention to cross-examination of the husband. He relied on the following:

"Only for four times we have cohabited. I have accepted this aspect of life. It is not a fact that we are in the habit of regular cohabitation or that I have full satisfaction in cohabitation of my life."

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"Yes it is a fact that w.e.f. 30.08.2000 till 08.10.2000 I and my wife went on a tour programme with the help of Loknath Travel Agency at Delhi, Agra, Rajasthan and Gujarat."

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"It is not a fact that I with full satisfaction with my conjugal life with my wife in a regular manner."

5. He then drew attention to paragraph 11 in Evidence on Affidavit of the husband, reproduced below: -

"That due to obnoxious attitude of the O. P. my life became miserable and I became isolated from my friends and relatives and staying in separate place, separate mess in the same house."

6. Meaningful reading of above evidence and the pleading would cause conclusion or inference that his client was always ready and willing to cohabit with her husband. Mr. Paul submitted there should be view taken concurrent with that of learned second Judge.

7. Mr. Bhattacharya, relied on judgment of Supreme Court in Manish Goel vs. Rohini Goel, (2010) 4 SCC 393 . He submitted, said Court had granted decree of divorce to put quietus to all litigations between the parties and to save them from further agony, as also evident from several earlier decisions referred therein. He submitted, there should be view taken concurring with that of learned presiding Judge.

8. View to be taken must be upon appreciation on a question of fact, whether regular co-habitation or co-habitation had been denied by appella